Bracey v. Northwestern Improvement Co.
| Decision Date | 06 June 1910 |
| Citation | 109 P. 706,41 Mont. 338 |
| Parties | BRACEY et al. v. NORTHWESTERN IMPROVEMENT CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; Frank Henry, Judge.
Action by Ernest Bracey and others, by Alice Bracey, their guardian and by herself in her own right, against the Northwestern Improvement Company and another. From a judgment for defendants, plaintiffs appeal. Affirmed.
Walsh & Nolan and W. F. Meyer, for appellants.
Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for respondents.
This action was brought by Alice Bracey in her own right, as the widow and heir of J. E. Bracey, deceased, and as guardian of her minor children, for damages for the death of said Bracey which it is alleged was caused by the negligence of defendants. The death of Bracey was caused by the inhalation of poisonous gases during an attempt by him to rescue miners in the employ of the defendant company, in its coal mine at Red Lodge, in Carbon county, who had themselves been overcome by inhaling such gases while engaged in an effort to extinguish fire then burning in the mine.
The complaint is very long and somewhat indefinite in some of its allegations; but these may be epitomized as follows: The defendant Pettigrew was the superintendent and general manager of the defendant company and had full charge of its business operations. On and prior to June 7, 1906, there were in the mine gases, deadly and explosive. In order to expel them, the defendant company resorted to ventilation by means of electric fans, which drive currents of air into and through the passageways and out through other openings, thus expelling the gases, or, by reverse movement, drew them out by currents produced by suction, thus allowing fresh air to be forced in through other openings. In some of the passageways there were obstructions, created by débris which was permitted to accumulate therein from falls of rock and earth. These obstructed the free passage of air currents. There were unused workings, from which the coal had been extracted. In these, gases accumulated from time to time and, escaping therefrom when the fans were not in operation accumulated in the passageways. On and prior to June 7th a fire had for some days been burning in the mine. On June 6th one of the ventilating fans had been stopped, and for this reason gases accumulated in the passageways through which men going in to subdue the fire must pass. This fan was started on the morning of the 7th, but had not been running a sufficient time to clear the passageways of the gases. The defendants did not examine these to ascertain their condition. Several miners were sent in by the direction of defendant Pettigrew to subdue the fire, without being informed, however, of the presence of these gases, and, being overcome by them, were in peril of their lives. Information of this condition was brought to the knowledge of defendants and was circulated in the vicinity of the mine, and the defendants knew that rescue parties were likely to go in to effect a rescue. The deceased, Bracey, did not know of the conditions prevailing. At the request of the defendants, and by reason of the information gained through persons in the vicinity, Bracey entered the mine to aid in the rescue. After stating these facts, the complaint proceeds: "That the defendants, wholly disregardful of their duty in the premises, negligently failed to inform and advise the said J. E. Bracey, so entering said mine in the manner hereinabove set forth and under the circumstances therein stated, and for the purpose specified, as to the existence of the poisonous gases that had accumulated in said mine and the workings thereof, and that were then existing through the negligent acts and conduct of the defendants, as above set forth, and negligently failed to advise the said J. E. Bracey of the lack of ventilation then and there existing as above set forth; and the said J. E. Bracey, then and there ignorant of the lack of ventilation, and then and there suspecting and believing that the only dangers and risks to which he was then exposing himself in the work of rescue, aforesaid, were the dangers and risks which arose from the gases then being created and existing on account of the prevalence of the fire in said mine, hereinbefore referred to, on the date named entered said mine and the workings thereof for the purpose of rescuing the said named persons therein, and the said J. E. Bracey so entering said mine and the portions thereof where said work of rescue was to be performed by him, as aforesaid, and so engaged in said work, was overcome by the gases so negligently permitted to accumulate, as aforesaid, in consequence of which, on the day named, he died in said mines; and plaintiffs further aver, in that connection, that the gases then and there causing his death were gases other than those generated and developed by said fire and of whose existence he was then and there conscious."
The answer denies all of the allegations of the complaint charging the defendants with the acts and omissions constituting the negligence alleged. It alleges that the deceased entered the mine as a volunteer, and that his death was due to his own contributing fault and negligence. At the close of plaintiff's evidence, the defendants moved the court to direct a verdict in their favor, on several grounds, among others, in substance, the following: For that while it is alleged in the complaint that the death of Bracey was due to the inhalation of gases other than those generated by the fire, of which he had knowledge, the evidence shows conclusively that it was caused by gases generated directly by the fire. The motion was sustained, and judgment entered accordingly. The appeal is from the judgment.
The only question submitted for decision is whether the trial court properly withdrew the case from the jury. Recovery is sought upon the theory that the defendants are chargeable with the death of Bracey, by requesting or permitting him to enter the mine for the purpose of rescuing the imperiled miners, without informing him of the dangerous conditions known or which should have been known to them to exist therein, and thus exposing him to a peril of which he had no knowledge. It will be noticed that the existence of the fire is not attributed to any negligence or omission of duty by the defendants; nor is it alleged that gases generated by it were permitted to accumulate. It is alleged that the peril of the miners was due to the accumulation of gases spontaneously generated in the unused workings, and that the accumulation of these in the passageways which he entered was the cause of Bracey's death. Plaintiff's right of recovery must, therefore, be sustained or denied upon the showing made by the evidence on this point.
The rule is recognized generally that one who, observing another in peril, voluntarily exposes himself to the same danger in order to protect him or save his life, may recover for any injury sustained in effecting the rescue, against the person through whose negligence the perilous condition has been brought about, provided the exposure is not made under such circumstances as to constitute rashness in the judgment of prudent persons. In Mr. Thompson's work on Negligence we find the rule stated as follows: "One who, acting with reasonable prudence, voluntarily exposes himself to danger for the purpose of protecting the person of another, may recover for the consequent injuries which he receives, from the persons whose negligence or other wrong caused the injury to himself and the danger to the person whom he sought to rescue." Section 199. The rule rests upon the principle that it is commendable to save life, and, though a person attempting to save it voluntarily exposes himself to danger the law will not readily impute to him responsibility for an injury received while doing so. In such cases the incurring of the danger is not per se negligence, and the question whether there was contributory negligence is ordinarily to be answered by the jury upon proof of the circumstances surrounding the attempt to rescue --such as the alarm, excitement, and confusion usually present, the uncertainty as to the means to be employed, the promptness required, and the liability to err in the exercise of judgment as to the best course to pursue--and great latitude of judgment must be allowed to one who is impelled by the dictates of humanity to decide and act in the face of emergencies. This is true in a case where an effort is made to rescue a person discovered upon the track in front of a rapidly moving train. Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 28 N.E. 172, 13 L. R. A. 190, 29 Am. St....
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